Jeremy Edward Johnson v. the State of Texas

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-21-00032-CR

JEREMY EDWARD JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2027612

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

On February 24, 2021, Jeremy Edward Johnson pled guilty to theft of property valued at

$2,500.00 or more but less than $30,000.00.1 He had been indicted for theft of property valued

at $30,000.00 or more but less than $150,000.00.2 He pled guilty to the lesser offense with no

plea agreement in place. The trial court heard testimony and sentenced Johnson to two years’

incarceration in a state jail facility and ordered him to pay $2,500.00 in restitution. Johnson

appeals that conviction and sentence.

Johnson’s appellate counsel filed a brief that outlined the procedural history of the case,

provided a detailed summary of the evidence elicited during the trial court proceedings, and

stated that counsel found no meritorious issues to raise on appeal. Meeting the requirements of

Anders v. California, counsel has provided a professional evaluation of the record demonstrating

why there are no arguable grounds to be advanced. Anders v. California, 386 U.S. 738, 743–44

(1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding);

Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d

807, 812–13 (Tex. Crim. App. [Panel Op.] 1978).

Johnson’s counsel filed a motion with this Court seeking to withdraw as counsel in this

appeal and provided Johnson with a copy of the brief and the motion to withdraw. His counsel

also sent Johnson the clerk’s and reporter’s records and informed Johnson of his right to review

the record and file a pro se response. On September 27, 2021, this Court notified Johnson that if

1 See TEX. PENAL CODE ANN. § 31.03(e)(4)(A). 2 See TEX. PENAL CODE ANN. § 31.03(e)(5). 2 he wished to file a pro se response to his counsel’s Anders brief, any such response was due on

or before October 27, 2021. We received no such response or request for extension from

Johnson. On November 30, 2021, this Court informed Johnson that the case would be set for

submission on December 21, 2021.

We have reviewed the entire appellate record and have independently determined that no

reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

That said, we note that the bill of costs includes two time payment fees, each in the amount of

$12.50. The Texas Court of Criminal Appeals has recently concluded that a time payment fee

like the ones imposed here “must indeed be struck for being prematurely assessed because a

defendant’s appeal suspends the duty to pay court costs and therefore suspends the running of the

clock for the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex.

Crim. App. 2021). “As a consequence, even now, assessment of the time payment fee[s] in this

case would be premature because appellate proceedings are still pending.” Id.

“This Court has the power to correct and modify the judgment of the trial court for

accuracy when the necessary data and information are part of the record.” Anthony v. State, 531

S.W.3d 739, 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet. ref’d)). “The authority of an appellate court to reform incorrect

judgments is not dependent upon the request of any party, nor does it turn on the question of

whether a party has or has not objected in the trial court.” Id. (quoting Asberry, 813 S.W.2d at

529–30).

3 Pursuant to Dulin, we strike the time payment fees “in their entirety, without prejudice to

them being assessed later if, more than 30 days after the issuance of the appellate mandate, the

defendant has failed to completely pay any fine, court costs, or restitution” owed. Id.

Accordingly, we modify the trial court’s judgment by deleting each time payment fee in the

amount of $12.50, for a total of $25.00, from the judgment and the bill of costs. We affirm the

judgment of the trial court, as modified.3

Scott E. Stevens Justice

Date Submitted: December 21, 2021 Date Decided: January 28, 2022

Do Not Publish

3 Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should Appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, Appellant must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. 4